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Brown v. State (12/11/2009) ap-2246

Brown v. State (12/11/2009) ap-2246

     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate

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) Court of Appeals No. A-10334
Appellant, ) Trial Court No. 3SP-07-21 CR
v. )
) O P I N I O N
Appellee. )
) No. 2246 December 11, 2009
Appeal    from    the
          District  Court,  Third  Judicial  District,
          Sand Point, Daniel Schally, Judge.
          Appearances:   David B. Loutrel,  Anchorage,
          for   the  Appellant.   Joshua  M.  Kindred,
          Assistant  District  Attorney,  Adrienne  P.
          Bachman,  District Attorney, Anchorage,  and
          Richard   A.   Svobodny,   Acting   Attorney
          General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and Mannheimer
          and Bolger, Judges.

          BOLGER, Judge.

          Barret  J.  Brown was convicted of misdemeanor  driving
while  under the influence1 and minor in possession.2  On appeal,
he claims that the district court erred when it denied his motion
          to dismiss the charges because his right to a speedy trial under
Alaska  Criminal Rule 45 was violated.  For the reasons explained
here,  we  agree  with  Brown and reverse  the  judgment  of  the
district court.

     Facts and Proceedings
          Sand  Point is a rural community that does not  have  a
sitting  district or superior court judge.  Consequently,  Valdez
District Court Judge Daniel Schally travels periodically to  Sand
Point  to handle misdemeanor criminal cases.  For at least  three
years before January 2008, Sand Points misdemeanor criminal trial
weeks  were  calendared for every two months.   In  other  words,
Judge  Schally would  preside over criminal cases in  Sand  Point
six  times  a  year.   In  Browns  case,  the  trial  weeks  were
calendared in June, August, October, December, and February.
          On  March  24, 2007, in Sand Point, Brown  was  charged
with  being a minor in possession of alcohol.  A few days  later,
on March 30, based on the same incident, he was also charged with
driving  while under the influence.  Judge Schally set  the  case
for  trial  the week of June 4, 2007, in Sand Point.   In  April,
Brown  retained an attorney who, on April 17, requested that  the
case  be continued until the October trial week.  The motion  was
granted and the trial was continued until the week of October  8.
This  time  was  excluded from the Rule 45 calculation.   Neither
Brown  nor  the State requested any other continuances,  nor  did
Brown  agree  to  toll Rule 45 for any delay after  the  week  of
October 8.
          At  the  October 4 trial call, both parties  said  they
were  ready for trial.  But another trial was scheduled for  that
week, so Browns case was set over to the week of December 3.   At
the November 27 trial call, the parties again said that they were
ready  for  trial.  But again there was another  trial  scheduled
that  had  priority  over Browns.  The same case  that  had  been
scheduled  for  October  had been rescheduled  for  the  December
calendar because Judge Schally had been unable to empanel a  jury
in October.
          Judge Schally acknowledged that Browns case had a  Rule
45  issue, but explained that under Wolfe v. State,3 he  believed
the  delay  would be excluded because he would be unavailable  to
preside  over  Browns  trial  until  the  next  scheduled  travel
calendar.  Brown objected to Judge Schallys suggestion  that  the
time  after  the  October trial calendar was excluded.   But  the
other  trial consumed the week of December 3, so Browns case  was
set over for trial the week of February 4, 2008.
           At  the  January 29, 2008 trial call, Brown  moved  to
dismiss  the case on Rule 45 grounds.  Judge Schally  denied  the
motion.   He ruled that under Rule 45(d)(2), the delay in getting
the  case to trial was attributable to Browns April 2007  request
for a continuance.
          Brown  was  convicted of the two  charges.   Brown  now
appeals,  claiming  that  more than 120 non-excludable  days  had
elapsed  between the time he was charged and before  January  29,
2008, when he moved to dismiss.

     Brown  Was  Not  Responsible for the Delay  after  the
     October Trial Calendar
          As  already explained, for at least three years  before
January  2008,  Sand Points criminal trial weeks were  calendared
for every two months.  Consequently, when a defendant continued a
case from one trial week, the defendant knew or should have known
that  the  next  opportunity for trial was two months  away.   In
Wolfe v. State, we ruled that under these circumstances, the Rule
45  clock  generally will toll until the next normally calendared
trial week.4
          Wolfe,  like the instant case, involved a small  Alaska
town that was served by a visiting judge.  The defendant in Wolfe
had  filed a motion to delay his trial until after May 14 because
his attorney would be out of the country until then.5  Eight days
after  Wolfes motion, the superior court granted his  motion  and
rescheduled the trial for June 23.6  Wolfe did not object to this
trial  date  until he arrived in court on the day of  trial,  ten
weeks  later.7   Wolfe  then claimed that  Rule  45  had  already
expired.8  The superior court disagreed.
          On  appeal, Wolfe again argued that Rule 45 had expired
before  the  date  of  trial, but we upheld the  superior  courts
decision because Rule 45(d)(2) excludes all delay resulting  from
a  defense  request for a continuance of trial.9  We  upheld  the
trial  court  because  [t]he venue for Wolfes  trial  was  Homer.
Wolfes  trial judge, Judge Brown, resided in Kenai and made  only
monthly  trips  to Homer  and he was unavailable to  visit  Homer
during  the  normally scheduled week in May.10  As a result,  the
next   possible  trial  date  was  in  June.   Based   on   these
circumstances, we agreed with Judge Browns reasoning:
          When you file a motion for continuance,  ...
          the  court has to re-calendar the case.  And
          you  may be available at a certain time, but
          that  does  not mean that [the parties]  and
          other  counsel are.  So any time  we  depart
          from [the date] that the case was originally
          scheduled, you run into complications.[11]
Consequently, we found that there was no Rule 45 violation.12
          Admittedly,  the language in Wolfe that we agreed  with
any  time  we depart from [the date] that the case was originally
scheduled,  you  run into complications  is  broad.   But  unlike
Wolfe,  Browns  continuance  was  not  the  proximate  cause  for
scheduling the trial after the October trial calendar.  In Browns
case,  it was unreasonable to attribute Browns one request for  a
continuance,  made  soon after the clock began  to  run,  as  the
reason  for  later  postponing the trial for an  additional  four
          Judge  Schally  properly excluded the  period  of  time
required  by  Browns request for a continuance until  the  second
week  of October, but Browns April request for a continuance  was
not  the  legal reason for the additional delay from  October  to
February.   Although Rule 45(d)(2) excludes the  delay  resulting
from  a defense request for a continuance, we conclude that under
this   subsection,  trial  courts  may  not  repeatedly   exclude
additional  time from the Rule 45 calculation solely because  the
defendant has at an earlier time requested a continuance.

          The   district   courts  judgment  is  REVERSED.    The
district  court shall vacate the convictions and enter dismissals
in accordance with Criminal Rule 45(g).
     1 AS 28.35.030.

     2 AS 04.16.050(a) & (b).

3 24 P.3d 1252 (Alaska App. 2001).

     4 Id. at 1254-55.

     5 Id. at 1254.

     6 Id.

     7 Id.

     8 Id.

     9 Id.

     10   Id. at 1254-55.

     11   Id. at 1255 (alterations in Wolfe).

     12   Id.

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